Thursday, September 15, 2011

Details on Proposed Unemployment Status Discrimination Law


Ladies and gentlemen, we've got text. On Monday, I reported that President Obama’s American Jobs Act would include provisions that prohibit discrimination against job applicants on the basis of their unemployment status. As a follow-up, you can now read the full text of the proposed legislation here. The “Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed” runs from pages 129 through 134. Here’s a brief overview:

Short Title
Fair Employment Opportunity Act of 2011

Findings
This section is frankly pretty weak. It just says that such discrimination hurts the economy, burdens welfare programs, and depresses tax returns. There is no discussion of the severity of the problem, or any attempt to assess the actual impact (if this gets serious consideration, maybe Congress will beef up this section a little).

Definitions
Covered “employers” are defined as having 15 or more employees.

Protected “status as unemployed” means “the individual, at the time of application for employment or at the time of action alleged to violate this Act, does not have a job, is available for work and is searching for work.” (the lawyer in me wonders what burden, if any, Plaintiffs will have to establish “searching for work”).

Prohibited Acts
  1. No ads indicating that unemployed applicants are disqualified or that the employer will not consider them.
  2. Employers shall not “fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual's status as unemployed”
  3. No delegating the unemployment status discrimination to an employment agency.
There are similar prohibitions applicable to employment agencies. The proposed legislation also includes interference/retaliation provisions.

Enforcement
The EEOC is tasked with enforcement, and has the same powers as those delegated under Title VII. Federal courts have jurisdiction to hear claims, and the procedures and remedies essentially mirror Title VII.

Federal and State Immunity
The Act claims to abrogate state immunity, and allows recovery against states and the United States as though they were non-governmental entities.

Effective Date
“This Act shall take effect on the date of enactment of this Act and shall not apply to conduct occurring before the effective date.”

Conclusion
In short, this legislation effectively adds “unemployment status” as a protected class. The procedures, enforcement, and remedies mirror Title VII. The proposed law also prohibits job advertisements that suggest the unemployed are disqualified from consideration.

Ultimately, I agree with Ross Runkel, "it seems unlikely to have enough political support to get enacted by Congress."

Image: Official White House Photo by Pete Souza (President Obama is actually on the phone with Governor Perry, which I find amusing).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.